Pacific Coast Law Journal.

VOL. XII.

SEPTEMBER 1, 1883.

Current Topics.

No. 2.

VALUE IN CLAIM AND DELIVERY.

The Code (Sections 627 and 667 Code of Civil Procedure) provides that, in an action to recover the possession of personal property, judgment for the plaintiff may be for the possession or the value thereof, in case a delivery cannot be had, and damages for the taking and detention; and also that the jury must find the value thereof, and assess the damages for the taking and detention. The same rule applies to the defendant, in case the property has been taken by the plaintiff and a return of it to the defendant be adjudged.

When is this value to be ascertained? In Kelly v. McKibben a judgment had been rendered for a return of the property, or if such return could not be had, then for $699, the value of the property at the time of the taking, interest thereon from the time of the taking, and $150, the amount expended by plaintiff in the pursuit thereof.

In 54 Cal. 192 the Supreme Court ordered this judgment to be modified so as to omit the sum of $150, and held that the interest could be regarded as "damages for the detention." The Court drew especial attention to the distinction between an action to recover possession of personal property (like this one) and an action to recover damages for the wrongful conversion of personal property, and held that Section 3336 of the Civil Code applied only to actions for the recovery of damages for the wrongful conversion of personal property. This section authorizes, as damages for such a wrongful conversion, the value of the property at the time of the taking, with interest from that time, or the highest market value between the conversion and the verdict, with a fair compensation for the time and money properly expended in pursuit of the property. This, being a

rule of damages only, cannot apply to an action for the recovery of the property itself, wherein, if the property cannot be had, judgment goes for the value and damages for the detention, because the value would be thereby twice included.

In Kelly v. McKibben the Court said: "If the Legislature intended to provide a rule which should apply only to cases in which a delivery could not be had, it has failed to express that intention. As the provision of the Civil Code (Section 3336) now stands, it applies to actions for the recovery of damages for the wrongful conversion of personal property, and not to actions for the recovery of personal property wrongfully detained." We must, therefore, go back to the common law for a rule in estimating the value in such actions.

The modern action of claim and delivery is based upon the two common-law actions of detinue and replevin.

In the former, the value of the property was estimated at the time of the verdict; in the latter, at the time of suit brought. (4 Minor's Institutes, 349; 2 Wait's A. and D. 538.)

When the property cannot be recovered, this action bears a resemblance to trover. In one you obtain, in lieu of the property, its value plus damages, for its detention; in the other, you obtain damages for its wrongful taking and conversion. This has led to much confusion of thought upon this subject.

In Douglass v. Kraft, 9 Cal. 562, the Court spoke of and adopted the rule of damages in trover. In Hisher v. Carr, 34 Cal. 645, the Court said: In case the property is not delivered to the plaintiff, the action bears a strong resemblance to an action of trover."

In Johnson v. Marshall, 34. Cal. 529, the Court held that in detinue, as in trover, the jury might assess the value at any time between the demand and the trial.

In 3 Sunderland on Damages, 544, the rule is thus laid down: "If, however, the return shows that the property has not been delivered to the plaintiff, the declaration is in the detinet, and goes for damages including the value of the property. Then the action is like trover or trespass. The measure of damages is the same as in those actions upon the same state of facts."

We do not think this rule practicable. The Code authorizes. a judgment for the property, or, if a delivery cannot be had, for its value and damages for its detention. In trover the judg

ment may be for the value at the time of conversion, with interest thereon, or the highest market value between the conversion and verdict, but without interest (Section 3336, supra).

If the latter part of the rule were adopted, the "damages for the detention" would have to be omitted, or the judgment would be for more than can be recovered in trover. The better rule is the one adopted in New York, Missouri, and Nevada, viz.: "To estimate the value as at the time of the trial." (38 N. Y. 423; 51 N. Y. 565; 30 Mo. 528; 12 Nev. 423.)

"The value is found, and usually of the date of the trial. * * There is a strong implication that the value should be assessed at the time when such delivery is adjudged in favor of the prevailing party. It is consonant to legal analogies to fix the value at the time when delivery is required to be made, rather than at any other time." (3 Sunderland on Damages, 542, 545; 4 Minor's Institutes, 349; 2 Wait's A. and D. 538.)

In addition to this value, the plaintiff is entitled to damages for its detention. Ordinarily, interest on the value from the time of the wrongful taking would be a proper measure, unless the property has depreciated in value, in which case the depreciation must be added to the interest on the value. (Allen v. Fox, 51 N. Y. 565; 3 Sunderland on Damages, 545, 546.)

The same result is reached by assessing the value at the time of the wrongful taking, and adding thereto interest thereon, and the amount of appreciation in value, if there has been any, since the taking. (24 Minn. 31; 3 Sunderland on Damages, 546.) The law aims to compensate for the entire injury.

[From a Paper read before the Kentucky State Bar Association.]

BY GEO. M. DAVIE, ESQ.

[Concluded from No. 1 P. C. L. J.]

First-It is inconsistent with the idea of sovereignty and beneath its dignity to have the State sued in any Court, especially at the suit of an individual.

Second-That to allow the State to be sued and the money in its treasury to be subjected by the Court to the payment of those it owes, or to indemnify those it has injured, might hamper or

prevent the proper performance of the public duties of the State or its officers in times of peace, or might endanger the public safety in times of war.

As to the first reason, it has already been shown that the use of the word "sovereign," as applied to our Commonwealth and officers, in this connection, is confusing and misleading. The citizen is the "sovereign" if there be any here, and the State his mere creature. If the free citizen can be sued, surely his agency, the State, or his servants, its officers, can be, without any sacrifice of dignity. It cannot be inconsistent with the idea of a Republican Government, founded on the demand for justice to the citizen, to permit that citizen to sue it, in its impartial Courts, for his rights. And there seems to be a much greater loss of dignity when the State repudiates an honest debt or indulges in a legislative squabble over a citizen's bill than for it to defend in a calm judicial proceeding.

It has never been thought inconsistent with the idea of sovereignty, or of dignity, for the State to come in and file and fight the thousands of suits that it brings against its citizens, or for it to appear as a defendant in error when the citizen appeals to the higher Court. And when, now and then, particularly favored persons secure permission to sue the State by special Acts, there has been no appreciable lessening of its dignity. (See Stevens v. Com., 3 Ky. Law Reporter, 165.) The dignity of the United States has not been impaired by the passage of the Act establishing a Court of Claims; nor has the dignity of any State suffered which has granted to its citizens the reciprocal right to sue it as it sues them.

Republics and commonwealths are supported, not for their own abstract grandeur or royal dignity, but to “establish justice” and "to secure to all citizens the enjoyment of their rights.'

"A State," said the Supreme Court through Judge Wilson in 1793, "is a body of free persons united together for the common benefit, to enjoy peaceably what is their own and to do justice to others." "Is there," he continued, "any part of this description which intimates in the remotest manner that a State, any more than the men who compose it, ought not to do justice and fulfill engagements? A State, like a merchant, makes a contract. A dishonest State, like a dishonest merchant, willfully refuses to discharge it. The merchant is amenable to a Court of justice,

Upon general principles of right, shall the State, when summoned to answer the fair demands of its creditors, be permitted, Proteus-like, to assume a new appearance, and to insult him and justice by declaring, ‘I am a sovereign State'? Surely not. Before a claim so contrary in its first appearance to the general principles of right and equality be sustained by a just and impartial tribunal, the person, natural or artificial, entitled to make such claim should certainly be well known and authenticated." (Chisholm v. Georgia, 2 Dallas.) In 1879 that same tribunal, speaking through Mr. Justice Samuel F. Miller, one of the greatest and most fearless minds that Kentucky has furnished to the nation, in answer to the argument "that the maxim of the English Constitutional law, that the King can do no wrong, is one in which the Courts must apply to the Government of the United States," said:

"It is not easy to see how the proposition can have any place in our system of government. We have no King to whom it can be applied. We do not understand that, either in reference to the Government of the United States or of any of their officers, the English maxim has any existence in this country." (Langford v. United States, 101 United States, 343.) The same great Judge, speaking for the same tribunal, in the Arlington Cases, 106 United States, page 206, said:

“What are the reasons which forbid that the King should be sued in his own Court, and how do they apply to the political body corporate which we call the United States of America? As regards the King, one of the reasons given by the old Judges was the absurdity of the King sending a writ to himself to command the King to appear in the King's Court. No such reason exists in our Government, as the process runs in the name of the President, and may be served on the Attorney-General. Nor can it be said that the Government is degraded by appearing as a defendant in the Courts of its own creation, for it is constantly appearing as a party in such Courts and submitting its rights as against the citizen to their judgment. * * * As no person in this Government exercises supreme executive power or performs the public duties of a sovereign, it is difficult to see on what solid foundation of principle the exemption of liability from suit rests. * * * No man in this country is so high that he is above the law. No officer of the law may set that law